On April 30, 2014, the Office of Special Counsel for Immigration – Related Unfair Employment Practices (“OSC”) issued a technical assistance letter in response to an inquiry regarding employment of F-1 student visa holders. Specifically, the question was whether or not an employer could decline to consider a job applicant who was in F-1 student visa status with optional practical training (“OPT”). In the scenario presented, the student’s OPT status was set to expire three months after application for employment. Complicating the potential employer’s decision was the fact that the student did not possess the ability to extend employment eligibility beyond the remaining three month authorized period because his academic studies were not in a STEM field; the employer had not enrolled in E-Verify; and the student was not eligible for any other available work authorization status.
Additional points raised in the inquiry and addressed by OSC in its response included the following:
- Could a company lawfully decline to extend an offer of employment to a candidate solely based on the fact that he/she will only have work authorization for three months without engaging in citizenship status or national origin discrimination?
- If the company may lawfully decline such employment, may it communicate to the applicant this ground as the basis for their decision?
- How should this be documented internally by the company in its business records and in its Applicant Tracking files (for OFCCP, etc.)?
OSC reiterated that the categories of individuals protected from citizenship discrimination are limited to U.S. citizens, lawful permanent residents who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. 8 U.S.C. § 1324(a)(3). That being said, F-1 student visa holders (includes students in OPT status) are not protected from citizenship status discrimination. An F-1 student applicant seeking sponsorship now or in the future is unlikely to implicate the anti-discrimination provision against citizenship status discrimination. In this situation, the employer can communicate to the prospective employee that its reason for not offering employment is its unwillingness to sponsor the applicant. This type of response would not trigger an unlawful citizenship status violation.
OSC warned, however, that an employer cannot rely on a person’s national origin as the basis for denying employment. All work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Individuals who suspect that they were not hired because of their country of origin, accent, or appearance may allege discrimination on this basis.
Furthermore, OSC stated that the employer was under no obligation to document information in its business records and Applicant Tracking Files. Nonetheless, OSC recommended that employers should clearly document selection and hiring decisions, including the basis for its determinations. Finally, an employer has an obligation to preserve all relevant documentation once it receives notification that OSC is about to initiate an investigation.